‘Religious Freedom’: We Keep Using Those Words

INTERNALLY DISPLACED PERSON

February 27, 2017

As you no doubt know, Washington’s Supreme Court recently, by a 7-0 vote, ruled against florist Barronelle Stutzman. The case began three years ago when “a long-time customer whom Stutzman considered to be a friend, asked her to create a floral arrangement for his same-sex wedding.”

As we told BreakPoint listeners, “Stutzman declined because her Christian belief that marriage is the union of one man and one woman prevented ‘her from using her artistic talents to promote contrary ideas about marriage.’” Instead, she referred him “to three other floral design artists who she knew would do a good job.’”

In a saner world, the worst that would have happened to Mrs. Stutzman was that she lost a longtime customer. Instead, the legal system, in the form of the ACLU and the state of Washington, decided to make an example of her. Now she faces both the loss of her livelihood and potentially ruinous attorney’s fees.

Let me be clear: What happened to Mrs. Stutzman was a miscarriage of justice. Period. Matters should never have reached this point. But they did, and at least part of the reason is that, to paraphrase Inigo Montoya, “You keep using those words. I do not think they mean what you think they mean.”

The “words” are, of course, “religious freedom.” The definitions of that phrase exist on a continuum from, at the most restrictive end, the right to believe (whatever that means) whatever you want, to the most expansive end, the right to not comply with laws that violate your personal religious scruples.

Inasmuch as the First Amendment refers to the “free exercise” of religion, the most restrictive definition is clearly wrong. The most expansive definition also has problems: Taken literally, or at least seriously, this definition, as Justice Waite wrote in Reynolds v. United States, raises the specter of “[permitting] every citizen to become a law unto himself.”

So what does the Constitution mean by the “free exercise” of religion? The text itself doesn’t tell us—it only says that “Congress shall pass no law” prohibiting it. And those hoping to divine the intent of the Founding Fathers by an appeal to history are likely to be disappointed.

That’s because there is little, if anything, in the period immediately surrounding the writing and ratification of the Constitution that provides guidance as to how competing interests such as those in Mrs. Stutzman’s case should be balanced.

For instance, in 1774, James Madison, the author of the First Amendment, wrote to William Bradford, the future attorney general, about the five or six Baptists sitting in a nearby Virginia jail “for publishing their religious Sentiments which in the main are very orthodox.” He closed by asking Bradford to “pity me and pray for Liberty of Conscience [to revive among us.]”

What Madison appears to have meant by “liberty of conscience” was the freedom to believe something and not be persecuted for both holding and propagating those beliefs. As Madison was probably aware, six years earlier, three Baptist preachers—John Waller, Lewis Craig and James Childs—were jailed in Spotsylvania for refusing an order to stop preaching.

Likewise, the Virginia Statute for Religious Freedom (1786), which was written by Thomas Jefferson and whose influence on the First Amendment is indisputable, reads, in pertinent part, “no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief, but that all men shall be free to profess, and by argument to maintain, their opinions in matters of Religion, and that the same shall in no wise diminish, enlarge or affect their civil capacities.”

Jefferson’s critics, both then and now, have said that the statute, “instead of aiming at freedom of religion, actually sought to impose upon the people a new, infidel religion of the Enlightenment, a kind of secular humanism destructive of traditional moral and religious values.”

I’m not qualified to pass judgment on their opinion. I am certain, however, that the statute, like the writings of the other Founding Fathers, provides no guidance as to how we can resolve the issues raised by Stutzman’s case.

Making matters even more complicated is the fact that until Cantwell v. Connecticut, which was decided in 1940, the Free Exercise clause only applied to the federal government. For the 149 years between the adoption of the First Amendment and Cantwell, the scope and limits of religious freedom was, with one important exception, a matter of state and local law.

That exception involved the Church of Jesus Christ of Latter Day Saints, a.k.a., the Mormons. Even before Joseph Smith’s announcement regarding what he called “patriarchal marriage” and the rest of us call “polygamy” in 1843, Mormons learned the limits of American religious tolerance the hard way. Some of it was mob violence of the sort that was endemic throughout much of 19th century America. But some of it was governmental—most (in)famously, Executive Order 44, issued by the governor of Missouri in 1838.

That order, issued towards the end of the “Mormon War” in the state, stated that “the Mormons must be treated as enemies, and must be exterminated or driven from the state if necessary for the public peace.” It led to the expulsion of the Mormons from Missouri, what we would today call “ethnic cleansing.”

Now, the relationship between Mormons and their neighbors was, as I like to say, complicated. But what isn’t is the fact that, whatever Americans understood by religious freedom, it didn’t preclude ethnically cleansing an entire sect, not so much because what they did was deemed immoral—polygamy, or at least open polygamy, was still in the future—but because of what they believed, and how they put these beliefs into practice.

This is not to say that Mormon leaders didn’t contribute to the tensions. (That’s what I meant by “complicated.”) Joseph Smith’s running for president in 1844 only served to further “otherize” Mormons in the eyes of their fellow Americans. And Brigham Young’s attempts to create a theocracy of sorts in the Utah territory, which led to an incursion by U.S. troops in 1857 (the so-called “Utah War”), made matters even worse. (And, as the Mountain Meadows Massacre makes clear, the violence ran in both directions.)

And that brings me back to the Reynolds case. George Reynolds, a Mormon leader, was charged with violating the Morrill Anti-Bigamy Act, which prohibited, well, bigamy, in U.S. territories such as Utah. There was nothing neutral about this act: It not only targeted Mormon marriage practices, but also “limited church and non-profit ownership in any territory of the United States to $50,000.”

Both at trial and on appeal, Reynolds argued that polygamy was a religious duty enjoined upon Mormon men by God, and that the Free Exercise clause required an exception to the general prohibition on plural marriage.

The impact of the Supreme Court’s rejection of Reynolds’ free exercise argument is still being felt today. By way of ascertaining the meaning of the Free Exercise Clause, it cited two passages from the preamble to the Virginia Statute for Religious Freedom.

The first reads, “To suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency is a dangerous fallacy which at once destroys all religious liberty,” and the second reads, “It is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order.”

It then declared, “In these two sentences is found the true distinction between what properly belongs to the church and what to the State.” It then concluded that while “Congress was deprived of all legislative power over mere opinion,” it was “left free to reach actions which were in violation of social duties or subversive of good order.”

Since polygamy “has always been odious among the northern and western nations of Europe,” outlawing it was in keeping with Congress’ power to preserve “social duties” and “good order,” and could be banned.

The Court then rejected Reynolds’ argument for an exception by saying that while “laws cannot interfere with mere religious belief and opinions, they may with practices.” As to the question “Can a man excuse his practices to the contrary because of his religious belief?” it replied, “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.”

The Court’s opinion in Reynolds, with its distinction between beliefs and opinions, and actions and practices, was pretty much 180 degrees from what today’s defenders of religious freedom would maintain. Making matters worse, its language about “every citizen [becoming] a law unto himself” was cited by both Justice Scalia in Employment Division v. Smith, and by Justice McCloud in State of Washington v. Arlene’s Flowers, a.k.a., the Stutzman case.

That’s where the understanding of the right to free exercise of religion stood at the end of the 19th century. The 20th and 21st centuries would be, at least on the legal front, a lot busier. But all that activity would only make things even more complicated. And that’s the subject of my next column.

Image courtesy of James Knopf at Thinkstock by Getty Images.

Roberto Rivera is senior fellow at the Chuck Colson Center for Christian Worldview. For nearly 20 years he has been chief writer for the BreakPoint Radio commentary program. His “Internally Displaced Person” is a mostly regular column at BreakPoint.org. His writings have appeared in Touchstone, First Things, and Sojourners. He lives with his son in Alexandria, Virginia.

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Frank Hitch

Observation on article. Driving Mormans out of Missouri because of bigomy is not what we would call today “ethnic cleansing”, because morman is not an ethnic group. It would seem to be a case of sedition. Since bigomy has always been odious to the nations of Northern and western europe how much more is sexual perversity odious to man’s conscience, and against common law. A senior citizen who does flower arragements for weddings is threatened by her state government because she is unwilling to suport the establisment of sexual perversity ( specifically homosexuality); she is holding fast to the law that endures. I agree with her.

Roberto

Actually, Bosnian Muslims are genetically indistinguishable from their Serbian and Croatian neighbors. Yet their persecutors believed that they were ethnically cleaning their region. Thus, the same argument can be made and label applied to Mormons being driven out of Missouri.

Wayne

This is a prime example of the tolerant left! A normal person would have gone to one of the recommended floral artists for their needs. Insane idiots, such as this couple and the ACLU (Anti-American Civil Loonies Union) push their extreme ideas as normal, so that they can remove the morals of this country, or at least the younger generation. These are the same insane idiots that believe pedophiles should be allowed to shower with their victims.

Oshtur

A normal person would have sold the advertised service without civil rights discrimination. Its been illegal in Washington to discriminate because of creed since 1949, this owner knew their legal obligations.

if she didn’t want to do the task there were other employees of Arlene’s Flowers LLC that would have. One employee quit on the spot when told to treat customers illegally, I’m betting Eryn would have been happy to fill this order.

Religious Freedom doesn’t mean Religious Discrimination. Every responding customer has a constitutional right to NOT share Stutzman’s Southern Baptist feelings about what is a proper marriage because they have a right to have a creed of their own.

God said we are to love even those of different faiths (Samaritans), that it was OK to give Caesar his due even if it was paid with idolatrous coins, and that it is all right to have dealings with those of this world.

If someone feels they can’t take care of a customer’s order then: • Let someone else fill the order, or • Hire a temp or 3rd party contract the task out, or • Don’t offer something for sale they feel they can’t sell as the law requires, same choice the Kosher Deli owner makes about selling pork.

And they can even start up a private club or non-profit that can discriminate by civil rights. Why? Because those business models find the people they want to serve first and then make just them the invitation to buy.

But inviting the general public and them refusing some because their beliefs allow them to do things with their purchase that the owner’s doesn’t? That’s religious discrimination and unconstitutional since every customer has a right to a belief of their own and the owner knew that before inviting the general public to come buy their wares, even those beliefs that allow marriage regardless of the couple’s sexes.

Robert Cremer

This is what I heard ACLU stood for (Anti-Christian League from the Underworld)